Voir dire, from a distance

Jury selection involves a lot of people in close proximity. The temporary stays of trials currently in place will soon give way, and some trials will have to proceed. Let us exchange ideas on this now; perhaps legislation will be needed, but aside from that note I express no opinion on whether the ideas below are or are not within the purview of a judge's current authority to impose. Anyway, parties and their lawyers have, I would think, an obligation to agree, when they can, on procedures to minimize risk to themselves and jurors.

We must minimize the time people are near each other. Here's one idea.

Instead of having a process that deletes people from the venire, leaving the remaining first 12 as a jury, in this procedure counsel affirmatively select the jury.

1. A relatively small number of people are called per time slot, say 50 or less. They gather for a short period of time, hopefully in a jury assembly room that holds some 150 people, enabling social separation. As many time slots are arranged as necessary, given the balance of the process.

2. A short introduction is made by the judge and counsel, and questionnaires are distributed. These questionnaires are more extensive than usual, might include a short statement of the case, include hardships questions, and will be the primary basis for jury selection. The venire may fill out the forms in the courthouse or outside, returning them to a box at the courthouse entrance (so they need not go back through metal detectors). The form requires contact information such as email and phone numbers.

3. Counsel and the judge review the questionnaires, striking those with hardships and those who appear to be biased, in effect handling cause challenges on paper.

4. From the remaining questionnaires, each side selects its top X candidates.

a. X is calculated as the total of the number of jurors and alternates, plus enough to allow for the other side to use their peremptory challenges. In a civil cases with two parties, with two alternates, each side selects six plus two, plus eight to account for the other side's challenges (six challenges for the jury and two for the alternate challenges) so that X = 16. That's a total of 32 candidates. More should be added to that number in case new cause challenges are made during the oral segment, outlined next.

5. Only the 36+ candidates are contacted and asked to return to court, perhaps 1/2 in the morning and 1/2 in the afternoon. They do not wait congregated in the courtroom, but scattered in the corridor outside the courtroom.

6. Each candidate comes in for a few minutes for a few follow up questions from counsel, so counsel can get something of personal sense of the candidate.

7. Following interviews, counsel may make further cause challenges, based on issues other than as revealed in the questionnaires.

8. Candidates are told to come back, say, an hour after the last group is interviewed.

9. In the absence of the candidates, each side, one by one, nominates a person to the jury, allowing the other side to issue a peremptory challenge. Even if all peremptory challenges are used, we should conclude with the jury of 12 and alternates.

10. The selected jury is contacted and told to return to court for the trial. They are seated scattered in the courtroom with a view of the witnesses stand, not only in the jury box.

The proposal does not treat jury deliberations, which might take place in the more open area of a courtroom (obviously with no one else present) rather than the usual jury deliberation room.

The process will take more time than usual. It will also be unwieldy -- or take much, much more time -- where there are lot of peremptory challenges. For example, in most criminal cases with, e.g., two defendants, the total number of peremptory challenges, not including for alternates, is a remarkable 40 (C.C.P. Section 231(a)). Parties should consider agreeing to a lower limit. This is the time for flexibility.

There are pros and cons to this procedure. Among others, a serious drawback is that the process will work against those who don't write well but would make great jurors. And we might endorse those who look good on paper but really spook us in person -- but hence the final oral interview. There are benefits too: I am reminded of what happened when orchestras started conducting interviews behind screens -- a lot more women were accepted. So too with traditional in-person peremptory challenges: a procedure designed in part to eliminate those who might have a bias -- but not obviously -- peremptory challenges themselves may be the vector of bias as lawyers consciously or unconsciously exclude members of certain groups. E.g., People v. Rhoades, 8 Cal. 5th 393, 456 (2019) (Liu, J., dissenting); People v. Armstrong, 6 Cal. 5th 735, 800 (2019)(Liu, J., et al., dissenting); People v. Johnson, 8 Cal. 5th 475, 536 (2019)(Cuéllar, J., dissenting). That sort of discrimination is less likely with the process outlined above.

Whether the process I outline is the best or not doesn't matter. We need options, and for those who believe statutes must be changed to implement voir dire in non-traditional ways, today would be a good day to introduce the legislation, providing trial judges with maximum flexibility. 